Sunday, August 22, 2010

Michael Liedtke, AP Business Writer, in his August 15, 2010 article Judge's Ruling Uproots Use of Biotechnology Beets reported that Federal U.S. District Court Judge Jeffrey S. White of the Northern District of California has invalidated government approval of genetically modified biotech sugar beets and has barred all future planting pending a full environmental impact review by the government (see the order in Case3:08-cv-00484-JSW Document570 Filed 08/13/10, in Center for Food Safety v. Vilsack, at the New York Times and at DocStoc).

Dyk's dissent is important as a member of the Federal Circuit to whom the Myriad case has been appealed, challenging a ruling by Judge Robert W. Sweet in the U.S. District Court for the Southern District of New York, according to which an isolated DNA sequence is not patentable subject matter.

Given the ill-considered U.S. Supreme Court (SCOTUS) decision in Bilski finding business methods to be patentable subject matter, we have become somewhat skittish and skeptical about what the courts will decide in this legal arena.

Our own view is that if a company isolates a particular DNA sequence and can figure out a way to commercially exploit that knowledge and know-how, more power to them, but we would never give them a patent for what is essentially a law of nature.

If a DNA sequence is "part" of any living organism, human, swine or otherwise, then why should any man-made enterprise be given a monopoly to exploit that particular God's work?

My understanding of the U.S. Constitution is that an inventive PRODUCT which encompasses such a DNA sequence could of course be patented, but not the DNA sequence itself. Why do the courts have such a hard time with this?